Special Topics in Forensic Psychology

Special Topics in Forensic Psychology
At times, forensic psychologists are retained as consultants. They are asked to assess job applicants or current employees or to assist as expert witnesses testifying about specific topics or areas of specialized research, rather than about specific people. These roles, though somewhat different from those of traditional experts expected to provide information relevant to specific individuals in courts of law, nonetheless require knowledge about the relevant professional literature, case law, and the legal system. In this section, three topics are considered, representative of roles of the psychologist as consultant and as expert witness on specific areas of research. Law enforcement and other agencies employing those in high-risk occupations frequently retain psychologists as consultants. Experts on a specific area or topic of research may be consulted and asked to serve as expert witnesses to review, for a jury, research related to such topics as eyewitness memories for people and events. Still other experts are retained as jury consultants, advising lawyers about which potential jurors might be most open to the arguments and evidence likely to be raised during trial.

Evaluation of Malingering and Deception

Evaluation of Malingering and Deception
Evaluators in a forensic context cannot accept unquestioningly a respondent’s answers as a valid or optimal representation of mental state. The motivation to respond in a self-serving fashion for secondary gain is readily apparent (e.g., financial reward in a personal injury case; custody of a child in a custody dispute; the assumption, often incorrect, of a shorter period of restricted freedom in an insanity case). Consequently, forensic experts must consider the possibility that the examinee may have attempted to distort test results because of malingering, exaggeration, and defensiveness. Neither rare nor very common in forensic evaluations, malingering is estimated to occur in 15% to 17% of forensic cases (Rogers, Salekin, Sewell, Goldstein, & Leonard, 1998; Rogers, Sewell, & Goldstein, 1994). In the chapter by Richard Rogers and Scott Bender of this volume, they present an overview of conceptual issues and response styles related to malingering and defensiveness. They describe explanatory models of why individuals may attempt to portray psychological and physical impairments, and they examine major empirical issues and false assumptions frequently made about malingering. Rogers and Bender review detection strategies designed to identify response styles, including the use of both traditional and forensically relevant instruments, such as the Structured Interview of Reported Symptoms (Rogers, Bagby, & Dickens, 1992) and the Validity Indicator Profile (Fredrick, 1997).

Approaches to Forensic Assessment

Approaches to Forensic Assessment
In clinical psychological evaluations, with few exceptions, the psychologist interviews the person being evaluated and then administers a battery of tests appropriate to the referral question. Data are analyzed and a report is prepared. Typically, no other information is considered. The assumption is made, for the most part correctly so, that the examinee has been truthful during the interview and candid in answering test questions, that no conscious attempts were made to look better or worse than the actual clinical picture. In forensic psychology, however, there is an obvious motivation to consciously present a distorted picture for an obvious, identifiable, secondary gain. In the civil setting, parents seeking custody may attempt to look more virtuous than they actually are, and plaintiffs in a personal injury suit may distort responses to appear more damaged than is the case. In criminal cases, defendants may choose to present a picture of being more emotionally disturbed than is justified to avoid trial, criminal culpability, or a sentence of death. Ways of increasing the objectivity and validity of opinions on psycho legal issues. The need to consider corroborative information by way of third party interviews and review of written records is explored. Using psychopathy as a model, the ways in which the use of reliable, objective measures of relevant psycho legal behavior and familiarity with the professional literature serve to increase the validity of forensic evaluations is detailed. In addition, because the cornerstone of any forensic assessment is the evaluation of malingering, exaggeration, and defensiveness, relevant research and the use of measures designed to provide information on this topic are described. The Use of Third-Party Information in Forensic Assessment A forensic psychologist conducting a psycho legal evaluation, whether in a civil or criminal context, must obtain information from those directly involved in the legal case (i.e., the plaintiff or respondent in a civil lawsuit; the parents, children, and others when custody is an issue; the defendant in a criminal case). However, such sources of information are “interested parties,” biased at best and, possibly, providing false or selective information because of malingering (simulation or dissimulation) and defensiveness. For this reason, experts must consider data provided by independent sources, third-party information, to corroboratedata obtained from the interested party through interviews and psychological testing. Sources for third-party information include others knowledgeable about the party involved in the suit or the events related to the case, and documents and records that may relate to statements made by the individual or that may provide additional information helpful in forming an opinion. Kirk Heilbrun, Janet Warren, and Kim Picarello examine there levance of third-party information in the forensic assessment process, describing its importance in forensic evaluations, and they describe the process by which experts obtain, apply, and communicate third-party information in forensic assessments.

Ethical Principles and Professional Competencies in Forensic Practice

Ethical Principles and Professional Competencies in Forensic Practice

Because of its uniqueness, perhaps no area of psychological practice receives more scrutiny than does Forensic psychology. Reports and testimony focusing on the opinions reached by the expert are open to both criticism and formal cross examination. The findings of forensic assessments often have profound effects on the lives of litigants, whether used to award or deny a parent custody of a child, to determine a financial verdict in a personal injury suit, or to deprive a defendant of his or her freedom. Forensic psychologists are expected to possess specialized knowledge of statutes and case law, familiarity with rules of evidence, and experience in administering forensic assessment and forensically relevant instruments, as well as traditional clinical psychological tests. The “Ethical Principles of Psychologists and Code of Conduct” (APA, 1992) is meant to apply to all areas of professional psychological activity. Because of the conflicts between the demands of the legal system and the “Ethical Principles,” forensic experts continually face conflicts and challenges in attempting to satisfy the needs of the court and the ethics of their profession. Herbert Weissman and Deborah DeBow discuss professional standards implicit in the competent professional practice of forensic psychology. They contend that legal competence is addressed through the application of ethical professional competency. In conforming one’s practice to the APA’s “Ethical Principles” and the “Specialty Guidelines for Forensic Psychologists” (Committee on Ethical Guidelines for Forensic Psychologists, 1991), professional competence is enhanced. They describe impediments and influences that impact ethical conduct, many of which derive from conflicts inherent in the relationship between psychology and the law. Weissman and DeBow offer ways to mediate such conflicts.

The Nature of Forensic Psychology

The Nature of Forensic Psychology
Forensic psychology is unique. By its very nature, it must respond to questions of a legal nature, requiring not only an understanding of how the legal system operates but also a working familiarity with relevant statutes and case law. At the turn of the twenty-first century, no one in the United States had earned a doctoral degree in forensic psychology (in Canada, Simon Fraser University comes closest to this qualification, with a degree in clinical psychology with a specialty in either forensic research or forensic practice). Consequently, those practicing in the field are, for the most part, clinical, counseling, or neuro psychologists with little or no formal graduate school education in forensic psycho legal issues nor in the specialized methodology required to conduct valid assessments. In most states, licenses to practice psychology are generic in nature; only a few states have specialty certification for forensic practitioners. Those identifying themselves as forensic psychologists do so on the basis of their personal, somewhat subjective belief that they possess the background, experience, skills, training, and knowledge that legally qualify them to make this claim. The only credentialing organization recognized by the APA for inclusion in its Directory as specialists are those holding the Diplomate in Forensic Psychology from the American Board of Professional Psychology, approximately 200 individuals nationwide. How are experts to be validly identified in this specialized area of practice? The issue of professional training and qualifications is a critical one for the field, and it should be equally significant to judges who are in the position of declaring a psychologist an expert for the purposes of offering testimony. What should be included in the graduate training of those intending to enter forensic practice? At the postdoctoral level, what should be required as part of the training fellowship? How can those from traditional psychology doctoral programs “retool” to develop the knowledge and skills expected of experts in the field? The APA’s (1992) “Ethical Principles and Code of Conduct for Psychologists” is written in somewhat general terms because it is intended to apply to all areas of psychology. Yet, the conflicts and issues that develop when attempting to practice ethically and objectively in the legal arena, a system of advocacy, readily become apparent. Where do forensic psychologists find guidance and direction working in this unique area of practice? Forensic assessments are conducted for a purpose. Although many, if not most, cases in both civil and criminal court do not go to trial, forensic experts must anticipate that their work will require court testimony (forensic reports frequently
contribute to pretrial settlements in civil suits and in plea bargains in criminal cases). How can forensic psychologists offer expert testimony that is objective, data-based, and effective? How can they know the legal limits of their intended testimony? forensic training and practice, the relationship among professional ethics, professional competence, and effectiveness, and the nature of expert testimony are examined. Authors argue for specialized training, skills, and knowledge, consider unusual ethical dilemmas and their resolutions, and discuss methods of conveying complex information to laypeople in an effective, objective fashion while conforming to the requirements and expectations of the legal system.

DIFFERENCES BETWEEN CLINICAL AND FORENSIC PSYCHOLOGY

DIFFERENCES BETWEEN CLINICAL AND FORENSIC PSYCHOLOGY
The fields of psychology and law are concerned with and focus on understanding and evaluating human behavior. The law exists to regulate human conduct; for this reason, psychologists are invited to participate in the civil and criminal justice systems. Because psychology is involved in studying behavior, in certain legal cases, findings and insights may assist the judge or jury in deliberations and decision making. However, there are significant differences between psychologists working in traditional settings and those conducting forensic assessments for the courts. Goldstein (1996) has summarized some of these significant differences. Greenberg and Gould (2001) consider role boundaries and standards of expertise of treating and expert witnesses in child custody cases. Roles of psychologists The major role of psychologists working in clinical settings, whether as psychotherapists or as psychological evaluators, is to help the client. What is learned about the patient is used to benefit the patient in terms of personal growth and support .However, in forensic psychology, the role of the expert is significantly different. Forensic psychologists are charged with using the results of their assessment to help or educate the court, without regard to the potential benefits to the examinee. In clinical psychology, psychiatric diagnosis serves a major function in treatment strategy. In addition, a diagnosis, based on criteria described in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV) or IV-Text Revision (DSM-IV-TR; American Psychiatric Association, 2000), is required for patients to receive insurance reimbursement. In forensic psychology, the role of psychiatric diagnosis is generally less critical an issue. Diagnoses are not required in many legal issues (e.g., child custody, Miranda rights waivers, personal injury). Although insanity statutes require a diagnosis as a prerequisite for its consideration by a jury, the psychiatric diagnosis does not, per se, define insanity. Rather, in forensic psychology, “diagnoses” are based on statutes, which define the relevant behaviors of concern to the court and, therefore, become the focus of the evaluation. For example, the question of a defendant’s ability to validly waive Miranda rights is defined as being able to do so knowingly, intelligently, and voluntarily—in legal, not psychological, terms. The job of the Forensic psychologist is to operationally or translate the legal terms into psychological concepts, which can be objectively evaluated (Grisso, 1986).

Conceptualization of Human Behavior
During Introduction to Psychology, college students are taught that behavior falls on a continuum. The normal distribution curve is the statistical and visual representation of the orientation of psychologists: Behavior is complex and cannot be readily categorized into discrete groups (e.g., intellectually gifted versus mentally retarded; normal versus psychotic). Unfortunately, the legal system most often considers behavior to be dichotomous. Typically, it requires the tried of fact to classify people and behavior into one of two categories (e.g., guilty versus not guilty; sane versus insane; liable versus not liable). With the exception of awarding monetary damages and instructing jurors to consider lesser charges in criminal proceedings, gradients rarely exist in the justice system. Ethical conflicts arise when those who view behavior as falling on a continuum are expected to sort individuals into discrete categories. Product of the Professional Relationship Clinical psychologists conducting traditional as Assessments seek to explain the client’s behavior. The underlying focus of the written report is typically cognitive functioning and psychodynamics. In forensic psychology, explanations of behavior and level of intelligence are generally irrelevant. Such explanations may be accurate, but they do not respond to the specific legal issue or question. To be valuable, forensic reports should address psycho legal behaviors, rather than focusing on explanations, psychodynamics, IQ, or “excuses” for conduct. Trust of the Client’s Responses Rarely do clinical psychologists question the truthfulness or motivation behind a patient’s statements or test responses. Inaccuracies are typically attributable to a lack of insight rather than a conscious effort to deceive. However, in forensic assessments, the motivation to consciously distort, deceive, or respond defensively is readily apparent. Consequently, forensic psychologists cannot take the word of the client unquestioningly. All information must be corroborated by seeking consistency across multiple sources of information (e.g., interview of third parties, review of documents). In addition, tests that objectively evaluate test-taking attitude are available to address the validity of claims of cognitive impairment and mental illness. Temporal Focus of the Evaluation Most clinical assessments are present-oriented; that is, they focus on the client’s state at the time of testing (e.g., his or her psychodynamics, level of intellectual function). Some forensic assessments have at least part of their focus on the present (e.g., which parent is best suited to address the current needs of the child), but most address either exclusively or partially past or future behavior. For example, insanity assessments focus on the defendant’s state of mind at the time a crime occurred: days, weeks, months, or years before. In personal injury cases, the court is interested in not only the plaintiff’s current impairments, but also in what he or she was like before the injury, whether there was a connection between the alleged wrong and the damage, and the prognosis for restoration to the pre incident state. Even in child custody assessments, developmental changes attributable to age require the evaluator to assess the parents’ ability to best serve that child’s interests. Level of Proof Because psychology is a science, the level of proof is based on the normal distribution. Empirical studies must demonstrate statistical significance to be considered interpretable; this level is typically set at the .05 level of probability. That is, the investigator must be 95% certain that the results of the study are attributable to the variables under investigation rather than to chance. In court, various standards of proof exist (e.g., beyond a reasonable doubt, clear and convincing evidence, preponderance of the evidence), the level dependent on the legal issue in question and which side bears the burden of proof. However, as expert witnesses, forensic psychologists typically are asked whether they were able to reach an opinion “to a reasonable degree of psychological certainty.” This level does not refer to the .05 level of statistical significance, nor does it relate to other legal levels of proof. Rather, it refers to the data on which the opinion is based: Can the expert describe the reasons for his or her opinion based on all the information considered, and, at the same time, can he or she explain why alternative opinions (such as malingering) can be ruled out?

Professional Accountability
The “Ethical Principles and Code of Conduct” govern the professional activities of psychologists (American Psychological Association [APA], 1992). As such, psychologists are answerable to their professional Organization (as well as to state boards in which they hold licenses) for complaints of unethical conduct. However, relative to the number of psychologists who are members of the APA, complaints are few. Without implying misconduct on the part of large numbers of psychologists, psychotherapy is Conducted behind closed doors with only the patient as witness. In traditional testing situations, the client is evaluated and a report is sent to the referring party. Because that party made the referral, a sense of trust in the psychologist’s competence exists; few people look over the psychologist’s shoulder. However, in forensic psychology, reports and testimony are carefully examined, dissected by opposing counsel, and subjected to close, probing cross-examination. Transcripts of the testimony are prepared. If an attorney, judge, opposing expert, or party in the litigation believes, justly or unjustly, that misconduct has occurred, an ethics complaint may result. Forensic psychologists are responsible not only to their profession, but, in some ways, they are answerable to all parties involved in the legal system, suggesting the need for a conservative approach to those issues and conflicts that arise in the legal arena. Who Is the Client? In clinical psychology, the client is readily identifiable: The person to whom professional services are offered is the client, the one owed the legal duty, the one to whom privilege belongs. In contrast, in the judicial system, forensic psychologists serve multiple clients. In his landmark book, Who Is the Client?, Monahan (1980) confronted a fundamental difference between forensic practice and clinical practice. He argued that the expert serves not only the person being evaluated, but many others as well. Because of the nature of the assessment, the nature of the oath (to tell the whole truth and nothing but the truth), and APA ethical principles, clients include the retaining attorney, the consumer of the product (e.g., the judge and jury), and those potentially affected by the expert’s opinion: society as a whole. Other Noteworthy Differences Greenberg and Shuman (1997) discussed several other irreconcilable differences between clinical and forensic evaluations. They described differences in the cognitive set of the clinical psychologist and the forensic expert. Clinical psychologists approach clients with supportive, empathic orientations; the unique requirements of forensic assessments necessitate detached, neutral, and objective approaches. In terms of the amount of structure and control in the relationship, patient-structured relationships have relatively less structure than forensic examiner-examinee relationships. These fundamental differences shape and determine the approach of forensic psychologists to conducting assessments, their methodology, and the structure of their opinions and testimony. Only by recognizing and addressing these major differences can forensic psychologists function in an effective, ethical manner.